D.P. v. G.J.P.: Mere separation of parents is insufficient grounds to give grandparents standing to force custody dispute

The fourteenth amendment’s due process clause requires “that the custody, care and nurture of the child reside first in the parents,” (quoting Prince v. Mass, 321 U.S. 158, 166 (1944)), and giving third parties–including grandparents–standing to initiate a custody battle before the courts invokes strict scrutiny. 23 Pa.C.S. § 5322 previously purported to give such standing to grandparents and great-grandparents when the parents had been separated for six months or more, presumably on the basis that such separation made the parents less fit and should open their right of custody to court supervision if questioned by close family members. But our Supreme Court ruled yesterday in D.P. v. GJP that such separation alone is an insufficient basis to overcome parental constitutional rights.

The case arises from a custody dispute in Westmoreland County (home to the infamous 1910 coal strike), where separated parents agreed on a custody plan between themselves, and also agreed to not allow one set of grandparents any opportunity for visitation. The grandparents used this statute to initiate proceedings before the court of common pleas, which invalidated the statute on due process grounds. The case went straight to SCOPA, as required whenever a statute is ruled unconstitutional by a lower court. 42. Pa.C.S. § 722(7).

In affirming the CCP, the Court noted that custody determinations are issued from the parens patriae power of the state, which gives the state power to protect the rights of those under legal disability. Thus, a custody determination is “state action” invoking the fourteenth amendment’s protections. The case also contains a discussion of the presumption that parents are acting in the best interest of the child, so that “the evidentiary scale is tipped, and tipped hard, to the parents’ side.” (quoting Hiller v. Fausey, 588 Pa. 342, 362 (2006)).

The Court ruled that the statute is severable even though the statute does not say so; it is presumed that severability is the norm, with legislative intent as the “touchstone” of determining whether it is better to sever and strike down the entire statute.

Justice Baer, who is working hard to become the Court’s Great Dissenter, would strike the whole statute and, along with Justice Wecht also feels it is appropriate to overrule conflicting caselaw which the majority felt was outside the scope of the appeal.